OPINION:
[*316]
[**183] David Sylvan Fine applies to this court for admission to the Oregon State Bar.
The applicant
graduated from the University of Oregon Law School in May 1984 and applied for admission
to the Oregon State Bar after passing the bar examination. The Board of Bar
Examiners recommended to this court that applicant's admission be denied on the
ground that he had failed to show
good moral character. Applicant petitioned this court to review that recommendation. We referred
the matter to the Disciplinary Board for a hearing to inquire into
[***2] applicant's moral character and general
fitness to practice law.

A trial panel of the Disciplinary Board recommended that applicant's request
for admission to the Oregon State Bar be denied. We agree based on our
de novo review of the record, ORS 9.539, and deny applicant's petition to be admitted
to the Oregon State Bar.

STANDARD FOR ADMISSION

ORS 9.220, the general requirements for
admission, provides in relevant part:

"An applicant for admission as attorney must apply to the Supreme Court and show
that the applicant:

"(1) Is at least 18 years old, which proof may be made by the applicant's
affidavit.

[**184]
"(2)(a) Is a person of
good moral character.

"(b) For purposes of this section and ORS 9.025, 9.070, 9.110, 9.130, 9.210,
9.250, 9.527 and 9.545, the lack of 'good moral character' may be established by reference to acts or conduct that reflect moral
turpitude or to acts or conduct which would cause a reasonable person to have
substantial doubts about the individual's honesty, fairness and respect for the
rights of others and for the laws of the state and the nation. The conduct or
acts in question should be rationally connected to the applicant's
[***3]
fitness to practice law."

ORS 9.250 states:

"If an applicant for admission as an attorney is found qualified, the court
shall
administer an oath to the applicant, that in the
practice of law the applicant will support the Constitution and laws of the United States and
of this state, and be of faithful and honest demeanor in office. The court
shall then direct an order to be entered to the effect that the
[*317] applicant is a resident of this state, of the age of 18 years, of
good moral character, and possesses the
requisite learning and ability to practice as an attorney in all the courts of this
state, and has taken the oath of office. Upon the entry of the order, the
applicant is entitled to practice as such attorney."

The
requisite burden of proof is established by BR 7.5, n1 which states:

"An applicant for admission to the
practice of law in Oregon shall have the burden of establishing by
clear and convincing evidence that he or she has the
requisite
good moral character and general
fitness to practice law and that his or her admission to the
practice of law in this state will not be detrimental to the administration of justice or the
public interest."
[***4]

n1 Applicant
raises many legal challenges to this test. Our findings in this matter would
be the same even if the Oregon State Bar had the burden to prove applicant's
unfitness to practice law by
clear and convincing evidence.

The question is whether applicant is presently of
good moral character. Evidence of past acts or conduct may be relevant to that issue if rationally
connected to applicant's
fitness to practice law. ORS 9.220(2)(b);
see also
Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S Ct 752, 1 L Ed 2d 796 (1957). The statutory and administrative rules for admission to practice law in Oregon
conform to the constitutional standard established by
Schware.

BR 7.5 requires that an applicant establish by
clear and convincing evidence that he or she has the
requisite
good moral character and general
fitness to practice law, and that admission to the
practice of law in this state will not be detrimental to the administration of justice or the
public interest. The second part of BR 7.5
[***5] is not in issue in this case. n2

"This second * * * rationale for character
screening rests on the bar's own interest in maintaining a professional community and
public image. In both its instrumental and symbolic dimensions, the
certification process provides an opportunity for affirming shared values. * *
*

"* * *

"Even as a theoretical matter, however, this (second) rationale for character
screening remains problematic. While these professional interests help explain, they
fail adequately to justify the bar's attachment to character
screening. To prevent or deter individuals from entering a profession in order to promote
the reputation, autonomy, or monopoly of existing members is troubling on
constitutional as well as public
policy grounds. * * * [I]t is difficult to construe the bar's parochial
concerns as the kind of legitimate state interest normally required to restrain
vocational choice."

"Bar proceedings relating to
discipline, admission and
reinstatement are neither civil nor criminal in nature. They are sui generis and within the
inherent power of the Supreme Court to control. The
[**185] grounds for denying any applicant admission or
reinstatement or for the
discipline of attorneys set forth in this chapter are not intended to limit or alter the
inherent power of the Supreme Court to deny any applicant admission or
reinstatement to the bar or to
discipline
a member of the bar."

BR 5.1(a) provides:

"Trial panels may admit and give effect to evidence which possesses probative
value commonly accepted by reasonably prudent persons in the conduct of their
affairs. Incompetent, irrelevant, immaterial, and unduly repetitious evidence
may, however, be excluded at any hearing conducted pursuant to these rules."

The wording of BR 5.1(a) is similar to ORS 183.450(1) relating to
administrative proceedings and rules of state agencies.

Applicant objected to the hearsay nature of many of the exhibits. In each
instance, the objection of applicant was overruled. All exhibits offered
[***7] were admitted with the exception of a manuscript of a book about the
bombing incident that was written by a South African author who specializes in writing
about urban terrorists.

In deciding this case, we do not rely on any hearsay evidence. Our findings
are based on current statements made by
applicant that demonstrate he is not presently of
good moral character.

APPLICANT'S BACKGROUND

We take the following statements of facts from the findings of the trial panel.
David Sylvan Fine was born in Wilmington, Delaware, on March 19, 1952, and was
the second of two children born into a middle-class family. He
[*319] attended the Wilmington Friends School in Wilmington, Delaware, a private
school run by the Quakers. At the age of 13 he became actively involved in
activities to oppose the United States' participation in the Vietnam war.
During his high school years, applicant adopted a pacifist belief and
participated in
anti-war activities with persons who were firmly committed to pacifist and non-violent
views. Applicant's
involvement in
anti-war activities included demonstrations in Wilmington, Delaware, and Washington,
D.C. The group to which applicant belonged was
[***8] the Wilmington
Anti-War Committee.

Applicant was admitted to the University of Wisconsin at Madison, Wisconsin, in
the fall of 1969. Applicant chose the school because of the journalism program
and because there was an active
anti-war movement at the school. Applicant's grades in his freshman year were above
average. His outside activities involved becoming a reporter on the
university's daily newspaper, The Daily Cardinal. In the spring of 1970 he
became a night editor for the paper. As a member of the
editorial staff, applicant supported
editorial opinions which condoned the use of violence. He wrote an
editorial in or about April 1970 in The Daily Cardinal, entitled
"By Any Means Necessary," which condoned various forms of violence by
"revolutionaries," including kidnapping and murder.

APPLICANT'S MISCONDUCT

During this time applicant became acquainted with a Leo Burt, another writer
for The Daily Cardinal. In early August 1970,
applicant was
approached by Mr. Burt and asked to become a participant in the
bombing of the United States Army Math Research Center (Math Center), which was
located on the University of Wisconsin campus. On August 20 applicant agreed
to become
[***9] a participant. The other two persons involved in the
conspiracy were Dwight Armstrong and Karleton Armstrong, whom applicant met after
agreeing to participate in the
bombing.

Applicant was an active participant in the planning of the
bombing. He was aware of the size and nature of the
bomb, its potential for doing great physical damage and for harming individuals, and
that Karleton Armstrong had been
[*320] involved in previous
bombings and was operating under the name of the
"New Year's Gang."

In the early morning of August 24, 1970, Karleton Armstrong drove a stolen van
to the Math Center. Another vehicle, which belonged to Karleton Armstrong's
father,
[**186] was brought to the Math
Center for use in the escape. Applicant was several blocks away from the Math
Center at a phone booth. He was to wait for a pre-arranged signal to call the
police and advise them that a
bomb was to go off. At 3:41 a.m., applicant called the Madison Police Department
and made the following statement:

"Okay, Pig, listen good. There is a
bomb at the Army Math Research Center, University, and it is going up in five
minutes. Get everyone out of there and clear the area, warn
[***10] the hospital. I am not bull-shitting, get everyone out of there now."

One
minute and forty-five seconds later, the
bomb detonated, resulting in the death of Dr. Robert E. Fassnecht who was doing
research in the building. The
explosion caused approximately $ 2.5 million damage to the building and the destruction
of records of many hours of research performed at the
building. Several other persons were injured in the
bombing. In addition to the direct damage to the Math Center, numerous other buildings
sustained damage. The
bomb had the explosive effect of 3,800 sticks of dynamite and, at the time, was
classified as the largest home-made
bomb in history.

Upon hearing the news reports of the death, the four conspirators decided to
flee. Applicant obtained a car belonging to a friend, and the four, Karleton
Armstrong, Dwight Armstrong, Leo Burt and David Fine, traveled to Ann Arbor,
Michigan, and then to New York City where they split up. After the
bombing, applicant
participated in the writing of communiques in which he took full responsibility for the
bombing and espoused the correctness of the action, attempting to justify it as a
morally correct action against the United
[***11] States Government.

Applicant and Leo Burt traveled to Boston and then to Ontario, Canada.
Applicant and
Mr. Burt then went separate ways and have not seen each other since. The
whereabouts of Leo Burt were still unknown at the time of the Bar proceedings.

[*321] Applicant returned to the United States, traveling to various mid-western
cities and eventually to California, where he spent the majority of his
fugitive period. He obtained or created numerous documents to support false
identities, including a Selective Service Registration Card, Social Security
cards and a driver's license. At no time while a
fugitive did applicant make any attempt to contact authorities to turn himself in.

Applicant wrote two articles during his
fugitive period wherein he reiterated his full commitment to the revolutionary movement
and fully accepted responsibility for, and agreement with, the
bombing of the Math Center. One article was written in 1972; the other was written in
1975 on the fifth anniversary of the
bombing. On January 7, 1976,
applicant was arrested by FBI agents. He initially identified himself as a
William Lewes and denied that he was David Sylvan Fine.

Applicant did,
[***12] at all times from the planning of the
bombing through his
arrest, and up until the time of sentencing, acknowledge and state that his role in
the
bombing was equal to that of the others and that he was in full support of the reasons
behind the
bombing and the
"correctness" of the action.

Applicant pled guilty on June 8, 1976, to two felony counts in federal district
court:
Conspiracy and unlawful flight to avoid prosecution. On the same day, applicant pled
guilty in the Circuit Court of Dane County, Wisconsin, to charges of
destruction of property and to Murder in the third degree for causing the death
of Robert Fassnecht.

Applicant was sentenced to a total of seven years' incarceration on the federal
charges and received a sentence in the state court of seven years, which ran
concurrently with the
federal sentence. Applicant spent a little over three years in prison and was
paroled on August 15, 1979. He served a parole period of approximately three
years and was released from that parole. His conduct during imprisonment and
parole was exemplary.

APPLICANT'S CONDUCT SINCE RELEASE FROM PRISON

Applicant enrolled at the University of Delaware and
graduated with a Bachelor's
[***13]
[**187] degree in Political Science in
[*322] 1981. During his senior year, applicant surveyed various states regarding bar
admission requirements. In each case, applicant stated that his
involvement in the
bombing was of a
"limited nature." He was accepted to five law schools. Applicant entered the University of
Oregon School of Law in the fall of 1981. During the next three years he
successfully completed his course of studies. He worked for the Public
Defenders Services of Lane County, Inc., during his third
year in law school and appeared in court on behalf of clients of that office.

Applicant
graduated from the University of Oregon School of Law in June of 1984. He sat for the
bar examination in July of 1984, achieving a passing score.

Except for details, the foregoing findings of the trial panel are essentially
undisputed and we adopt them. The point of these findings is not that the past
events necessarily disqualify applicant today but that they bear on his present
candor, credibility and trustworthiness as a lawyer.

APPLICANT'S CREDIBILITY

Applicant's testimony before the Board of Bar Examiners and on
deposition was that he entered the
conspiracy to
[***14]
bomb the Math Center and participate in the act itself without any reflection and
that his decision resulted from his immaturity at age 18. On
deposition taken June 4, 1985, in these bar proceedings, applicant testified that he was
very concerned that the risk of injury to others be minimized and therefore a
warning call would be
given to the police at least 15
minutes before the
explosion in order that the area could be cleared. Applicant testified that the
bomb was to be the equivalent of approximately 3,800 sticks of dynamite and was
intended to cause substantial damage rather than being merely symbolic. In
regard to the
warning time, on
deposition applicant testified initially:

"Q. And how long was the
fuse to be?

"A. I believe it was supposed to be 15
minutes, if I remember correctly.

"* * *

"Q. Why couldn't they park the car and just go down the street and make a phone
call?

"A. Too long.

[*323]
"Q. Why?

"A. They wanted a maximum amount of
warning time.

"Q. That is your understanding of the plan?

"A. That is correct. They would have been three or four
minutes after parking the van off 15, that is 11
minutes,
[***15] and that is kind of a short period for there to be a
warning.

"Q. Why would they have

"A. The closest phone was eight or ten blocks
away. Fifteen
minutes was already considered quite short, but sufficient. Thirteen
minutes was two
minutes less and that is getting towards the short side.

"Q. Did you inquire about that?

"MR. MARMADUKE: About what?

"MR. KILMER: About the time sequence and how important that was?

"THE WITNESS:
Definitely.

"Q. (By Mr. Kilmer): Was that a subject of great concern to you?

"A. Yes.

"Q. To make sure there was plenty of time to get people out?

"A. Correct. That is one of the reasons I agreed to do what I did."

And then again:

"Q. Did you ever ask about how reliable the
timing device on this
bomb was going to be so that you knew there was going to be 15
minutes?

"A. I asked about that, yes.

"Q. What were you told?

"A. I was told by Karleton that he had tested it and he knew exactly what
length of
fuse produced what amount of time.

"Q. And you understood that that was 15
minutes?

"A. Yes."

Subsequently, in the
same
deposition,
[***16] applicant was confronted with the message he had actually given to the police,
which stated
[**188] that there was only a five-minute
warning. The question was then asked:

"Q. Now where did the five
minutes come from?

[*324]
"A. That is what must have been determined at that point.

"Q. We have talked in this
deposition about 15
minutes. Five
minutes is a lot shorter. Which was it?

"A. Five
minutes.

"Q. Did you think five
minutes was enough time for people to go in and get people out of there?

"A. Yes, I do.

"Q. Did you expect police to respond to that message?

"A. Yes.

"Q. What did you expect them to do? Did you expect at least somebody to come
there?

"A. Yes, but I expected them to clear the building.

"Q. Did you expect them to come and clear the building and get away in five
minutes before that
bomb went?

"A. Yes.

"Q. Did you ever check how long it took to get from the Police Department to
the Army
Math Research Center?

"A. No.

"Q. Did you ever think about the fact that your five
minutes window might not be enough time?

"A. Yes.

"Q. Did you ever check
[***17] it out?

"A. Check what out?

"Q. Did you ever check out to see whether it was enough time or not?

"A. I don't understand."

The trial panel found and we agree that had applicant not gone into some detail
explaining the thought-process that went into determining the sufficiency of
the 15-minute
warning, this discrepancy might be attributed simply to errant memory. However, it
cannot be so excused. The testimony about the 15-minute time interval was a deliberate effort by applicant to state the matter in a
light most favorable to himself regardless of the facts. We observe that
applicant changed his story only after being confronted with a prior
inconsistent statement. This is classic impeachment of a witness's credibility
and a
crucial misstatement by the accused. These differences in
timing are not nit-picking differences.
[*325] They represent the difference between life and death. In this case, if
applicant had given 15
minutes'
warning, Dr. Fassnecht might not have died in the
explosion. In this
conspiracy it was applicant's responsibility to give an adequate
warning. Under oath he testified falsely about the
warning time.

Before the Board
[***18] of Bar Examiners applicant also testified falsely about his
involvement in the
bombing:

"Q. How long before that incident took place did you become involved?

"A. Four days.

"Q. Would you tell the Board how it came about that you were enlisted and why
you were?

"A. Well, actually I had returned to Madison earlier than the start of school
to go to a
wedding of a Daily Cardinal staff member. And I went to his
wedding. This is August 20th. I believe it was a Saturday.
Actually it would have had to have been before that because the 24th was Sunday
-- Monday. Perhaps a week before. So I would have to amend what I said about
four days. I believe it was actually closer to a week because it was
definitely the previous weekend.

"Q. What were you
approached to do and why were you
approached as far as you know?

"A. I was
approached to become involved in this incident which had already been basically ready to
go, you might say. I was told that the explosive had been procured and the
truck had been stolen, I guess at that point. It was really ready to go, you
might say. The participants were concerned that they did not have enough
manpower to
[***19] do exactly what they wanted to do. There were a couple of minor things they
wanted done they were logistically having problems doing with only three people
and needed a fourth person.

"* * *

[**189]
"Q. At the time you were asked to serve in those two roles what was your state
of mind? How did you look upon it? Did you consider it over a period of time
and then give an answer as to what you would do?

"A. I
didn't consider it. I pretty much agreed immediately."

Similarly, when his
deposition was taken on June 4, 1985, applicant testified:

"Q. Then how did you meet the Armstrongs?

[*326]
"A. I was introduced to them by Leo Burt.

"Q. When?

"A. This would be about something like August 17, 1970.

"Q. You had never met them before that date?

"A. No, I had not.

"* * *

"Q. Now, when is the first time that you learned that there was something afoot
to
bomb a building?

"A. This is on this day, probably one day before the day where I just described
meeting Karleton Armstrong. I had returned to Madison for a
wedding. A friend was getting married just prior to his last year at Wisconsin. He
[***20] was a good friend of mine, one of the Daily Cardinal people, and I was invited
to his
wedding. I returned to go to his
wedding, and I believe it was something like August
16 was the exact day and I was at the
wedding. It was at a synagogue in Madison and there was a party at his house on Spaight
Street, where I actually had intended to live the following year.

"Q. This is a party at whose house?

"A. Elliott Silverberg, 947 Spaight Street, S-p-a-i-g-h-t, and at the party, I
was
approached by Leo Burt.

"Q. When is the last time you had seen Leo Burt before that?

"A. Probably right before the Ann Arbor Blues Festival when I went back to
Pittsburgh and then to Ann Arbor to go to that, and that is probably the end of
July, 1970, something like that.

"* * *

"Q. Now when you were first
approached about this
bombing, tell me as much as you remember about that.

"A. Basically, Leo Burt
approached me at this party and said, let's go in the other room, I want to talk to you.
I said
okay and we went in the other
room. He said, there is going to be a
bombing, Army Math Research Center, and we need somebody else to be involved, and we
would like
[***21] to know if you are interested in being involved.

"* * *

"Q. Now going back to this whole deal in Mr. Silverberg's apartment at Spaight
Street, Burt says exactly what to you?

"A. I don't know exactly what he said.

[*327]
"Q. As much as you can remember.

"A. Something to the effect that there was going to be a
bombing at the Army Math.

"Q. Tell me the ensuing conversation up to the point that you said I am in.

"A. I said, who is it, and he said, it is the New Year's gang.

"Q. Go ahead.

"A. Then he said, we need someone else to help, and I said
okay. That is about as long as it took."

The trial panel noted that this testimony is contradicted by an affidavit
executed by applicant on July 16, 1976, setting forth his version of his
involvement in the
bombing of the Math Center. The purpose of the affidavit was for
possible impeachment of applicant in the event that he were required
subsequently to testify in criminal trials against any of his
co-conspirators. Contrary to the above-quoted testimony, the affidavit reveals that applicant
was
approached to join the
conspiracy probably in the first week of August 1970
[***22] and that he did not agree to join the
conspiracy until about August 21, 1970, after deliberating on the question.

The affidavit given in 1976 was materially inconsistent in several respects
with his sworn testimony taken on June 4, 1985. We find that this
inconsistency was not due to faulty memory, but was a deliberate falsification.
At the time applicant entered
[**190] his plea of guilty to the federal charges, he entered into an agreement with
the United States Attorney in Wisconsin that the affidavit accompanying his
plea would be sealed and would remain sealed pending capture of the other
co-conspirators still at large. We infer that applicant did not anticipate that this prior
statement would be
revealed in these bar proceedings. He knew that one of the
co-conspirators was still at large, and when first asked whether he had any objection to the
document being unsealed for the limited purpose of being used in the bar
proceeding he voiced an objection. Subsequently, after consultation with his
counsel, and three days after this testimony, his counsel sought release of the
document.

That after-the-fact action did not cure applicant's initial resistance to the
production
[***23] of this prior statement, which he knew contained his inconsistent statements.
[*328] Whether applicant spontaneously agreed to enter this
conspiracy due to his immaturity or whether he only entered the
conspiracy after giving it considerable thought and concern for the safety of others is
not a matter likely to be forgotten. This episode was paramount in applicant's
mind at the time of the hearing, and a person as bright as he would not forget
how he became involved in such an event.

Nor, as we previously mentioned, would applicant likely forget the crucial time
set for the
bomb to go off. This 1976 affidavit (Exh 37) also demonstrates that applicant knew
full well that the
timing for the
explosion was 5
minutes and not the 15
minutes he testified to in these proceedings. He gave this sworn statement in that
document:

"The question of time was discussed at this point as to how much time there
would be, a person said that there was six
minutes of
fuse. I said I thought that was, wasn't nearly enough
fuse that they wouldn't have time to clear the building cuz really it would only be
about four
minutes, after they got away and the call was made, and they said no, it
[***24] has to be, it can't be too long because P and S might come and see the burning
fuse, and extinguish it, but it and that five
minutes was
definitely sufficient to clear the building. * * *"

The significance of this
timing was etched in applicant's mind. He intentionally distorted the length of time
for the
explosion in order to minimize his prior actions.

Applicant's conduct
after the
bombing went far beyond the
bombing itself and continued for years thereafter. After the
bombing, applicant and his
co-conspirators decided to flee to avoid prosecution. Applicant was instrumental in the
success of the early stages of the flight in that it was he who obtained the
vehicle by which the
co-conspirators left Madison Wisconsin, went to Ann Arbor, Michigan, and on to New York City.

While in New York City applicant obtained or created documents evidencing false
identities. After New York City, applicant and Leo Burt briefly visited
applicant's sister in Boston, Massachusetts, and then proceeded to Canada. The
evidence reveals that applicant slipped into the role of
fugitive and, through continuous acts of deceit, successfully maintained that status
for approximately five and
[***25]
one-half years until his
arrest. In this course of time applicant created at
[*329] least two false
identities and the documents to support them and was in the process of creating
a third at the time of his
arrest.

After the
bombing, applicant had a choice to stop his criminal activity and turn himself in. He
did not. He had just
participated in an act that killed an innocent person and caused extraordinary damage.
Instead of accepting responsibility for his wrongful conduct, he chose to
protect himself by fleeing.

Applicant admitted that he had never given any serious thought to giving
himself up. But for his
arrest, applicant would have engaged in flight indefinitely. The
bombing occurred in August of 1970, but applicant was committing the felony of
unlawful flight to avoid prosecution as late as January 1976, and probably
would have continued to do so had he not been caught. There is nothing in the
newspaper articles
[**191] he wrote to suggest that the applicant viewed himself as anything other than a
full partner in the
bombing of the Math Center and a continuing
advocate of the views which led to the
bombing.

Applicant's complete devotion to his self-interest
[***26] at the sacrifice of others is demonstrated by his total lack of communication
with his parents during the five and
one-half years that he was a
fugitive. The parents did not receive one word from him for the entire period. They did
not receive inquiry from him as to their health or their needs for five and
one-half years. His own testimony was that this was a very close-knit family and
remained so. In fact, applicant's parents mortgaged the family home to raise
money for his bail after he was captured.

Applicant's political views and opposition to the government's actions in
Vietnam and Cambodia have no bearing on his present
fitness to practice law. Several respected persons testified favorably about the character of the
accused based on their association with him. However, none had personal
knowledge of the facts of the case, of his years as a
fugitive or of his inconsistent statements made during these bar
admission proceedings. Contrary to the conclusions of those who only recently
have become acquainted with applicant, we find from our
de novo review of the entire record of this case that applicant has changed only when
he has been
[*330] made to change or when
[***27] it has been to his advantage to do so. His important decisions relating to
his acts and attitudes are not based upon what is right or wrong, but only on
what is expedient or good for him. He not only engaged in a heinous crime in
the past but continues to misstate the facts of the crime and his
involvement in it in order to gain admission to the bar.

Like the members of the trial panel who saw and heard him testify, we are not
convinced of applicant's candor. He has not shown himself to be a credible
person and did not establish that he now has the
good moral character required to practice law. We base our decision on applicant's present
statements about his past acts. We recognize that persons can and do reform.
However, in this case applicant's deceitful,
self-serving conduct persisted at the time of the hearing.

Admission to the Oregon State Bar is denied. Costs awarded to the Oregon State
Bar.